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View SlideshowRequest to buy this photoTom Dodge | DISPATCHDavid Kane Smith, representing the Mount Vernon school district at the Supreme Court hearing, says it’s difficult to predict what the court will do based solely on the oral arguments.

Attorneys for Mount Vernon schools fidgeted in their seats and dropped their heads yesterday as
they listened to Ohio Supreme Court justices discuss the case of fired teacher John Freshwater.

Freshwater, dismissed more than two years ago for injecting his creationist religious beliefs
into his eighth-grade science classroom, sat on the edge of his seat smiling, surrounded by
supporters.

More than an hour later, both sides agreed that the hearing improved Freshwater’s chance of
returning to the classroom and that the school district hadn’t presented its best case.

“I would have preferred to be arguing it myself,” said David Millstone, the Cleveland lawyer who
represented the school district through a two-year administrative hearing that concluded that
Freshwater infused classroom science with his religious views and was insubordinate.

“I was squirming,” said Douglas Mansfield, who represented the district in a federal lawsuit
against Freshwater. “I think that the full and accurate record didn’t get heard by the court.”

Freshwater lost appeals in lower courts and is seeking reinstatement, damages and back pay.

The justices challenged David Kane Smith, the lawyer who represented the district yesterday, on
claims that Freshwater taught intelligent design and creationism. The district’s insurer is paying
Smith, who said Freshwater, as a teacher employed by Mount Vernon schools, had no academic freedom
in his science classroom.

Freshwater’s attorney, Rita Dunaway of the Virginia-based Rutherford Institute, spoke for most
of the hour-long hearing.

Smith said the questioning made him uncomfortable but added that it’s difficult to predict case
outcomes from oral arguments. Justices typically take several months to rule on cases and also
review written briefs.

During the hearing, Dunaway described a range of permissible teacher behavior. Freshwater, she
said, met each standard and never violated school policy. When ordered to remove Ten Commandments
posters, for example, he complied, she said.

But, Smith said, Freshwater left in his classroom his personal Bible, another from the school
library and a poster of President George W. Bush’s cabinet praying to defy school administrators.
Several other teachers also had Bibles in their classrooms, O’Donnell countered.

Justice Judith Ann Lanzinger asked Dunaway whether Freshwater’s teaching hampered students’
advancement later. Dunaway said they excelled and described Freshwater as “not only an excellent
teacher but one who taught evolutionary theory well.”

Justice Paul E. Pfeifer asked about a substitute teacher’s recollection that Freshwater cast
homosexuality as a sin, a charge Freshwater has denied. Despite having no other witnesses, the
hearing referee, R. Lee Shepherd, called the claim “clear and convincing.” Pfeifer called Shepherd’s
report upholding Freshwaters’ firing “very superficial.”

Smith conceded that board policy allows teachers to present personal beliefs, but not in
violation of the Constitution’s ban on the state establishing a religion.

After the hearing, Freshwater and more than a dozen supporters met in a closed hearing room for
about 20 minutes.